Pettus v. State

• Decision Date: 23 March 1910
• Citation: 126 S.W. 868
• Parties: PETTUS v. STATE.
• Court: Texas Court of Criminal Appeals

126 S.W. 868

PETTUS v. STATE.

Court of Criminal Appeals of Texas.

March 23, 1910.

Appeal from District Court, Cherokee County; James I. Perkins, Judge.

W. A. Pettus was convicted of rape, and he appeals. Reversed.

Norman & Shook, for appellant. Imboden & Perkins and John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

The appellant suffered a conviction on a charge of rape in the district court of Cherokee county on June 8, 1909, wherein his punishment was assessed at confinement in the penitentiary for a period of 25 years. The alleged injured party, Mrs. Audrey Nelson, was the wife of a stepson of appellant, and was a young woman about 25 years of age, living something like a mile from where appellant and his wife resided. The rape was alleged to have been accomplished on a certain Tuesday, the 1st day of June, 1909. Appellant admits the intercourse, but claims it was by the consent of Mrs. Nelson, and that they had intercourse repeatedly for some two or three years before the occasion in question. Mrs. Nelson testifies that, after the accomplishment of his purpose, appellant said to her that if she told of his conduct towards her that he would kill both her and her husband, and that this statement was repeated to her some days thereafter by appellant. She made no mention of the transaction to any one until about 10 days thereafter, when she told her mother and her husband. She was shown to be a woman of good reputation, both for virtue and chastity and for truth and veracity. Appellant's reputation for truth and veracity was shown to be bad, and there was some suggestion that his relations with women had not been what they should have been. There are a great many questions raised in the case, only one or two of which we deem it necessary to notice. Some of the matters are not likely to arise on another trial, at least, in the manner here presented, and as to most of them we feel and think there was no error committed by the trial court.

1. Complaint is made that testimony of the statement of Mrs. Nelson to the effect in substance that appellant had assaulted her was not admissible on account of the delay in making the same. It should be stated in this connection that she (prosecuting witness) was not permitted to give or state any of the details of the transaction, but her testimony was confined solely and only to the substantial fact of the assault made upon her. We think, in view of the threats testified to by her, considered in connection with her relations to appellant, that this testimony was admissible. Warren v. State, 54 Tex. Cr. R. 444, 114 S. W. 380; Railsback v. State, 53 Tex. Cr. R. 546, 110 S. W. 916. We think the manner of producing this testimony and the circumstances under which it was introduced are probably subject to the complaint that it was in advance of any assault upon the witness on account of her failure to make outcry, except that such objection is answered in the fact that later this was made the matter of serious contention by appellant. It should be further stated that the testimony of prosecutrix on the subject of resistance is quite vaguely stated. While she testifies that she resisted, and that the intercourse was accomplished without her consent, her account of the circumstance is not very clear. This may be due in part to the shock and fright of such assault for the time being measurably overpowering her reason and to some extent by the natural reluctance of a modest woman to go into details in respect to such transaction. However this may be, her testimony in respect to the matter of resistance and touching the issue of force on the part of appellant, while perhaps sufficient, is, it must be confessed, rather vaguely and indefinitely stated by her.

2. In this condition of the record the court gave to the jury the following charge: "To constitute rape, something more must be shown than the mere want of the female's consent and the use of force by the accused. There must have been resistance upon her part, dependent in amount on the circumstances surrounding her at the time and on the relative strength of herself and the accused; in other words, every exertion in her power, under the circumstances of the occasion, must be made by her to prevent the crime, or her consent will be presumed. ...